Landmark ruling by European court: Holocaust denial is not protected by the European Convention on Human Rights
The European Court of Human Rights has held in a unanimous decision announced on October 3 that denial of the Holocaust is not protected by European Convention on Human Rights provisions on freedom of expression.
The court’s ruling was announced in an application brought by Udo Pastörs, a former member of a regional legislature in Germany.
On January 28 2010, the day after International Holocaust Remembrance Day, Pastörs, then a member of the Land Parliament of Mecklenburg-Western Pomerania, made a speech saying that “the so-called Holocaust is being used for political and commercial purposes”.
He also referred to a “barrage of criticism and propagandistic lies” and “Auschwitz projections”, a statement by the European Court of Human Rights said.
In August 2012, Pastörs was convicted by a district court, formed of a bench of a judge sitting with two lay assessors, of violating the memory of the dead and of the intentional defamation of the Jewish people.
In March 2013, a regional court dismissed his appeal against the conviction as ill-founded.
After reviewing the speech in full, the court found that Pastörs had used terms which amounted to denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich.
In March 2013, a regional court dismissed his appeal against the conviction as ill-founded.
In its judgment on October 3 2019, the European Court of Human Rights held, unanimously, that a complaint by Pastörs on the grounds of “freedom of expression” was “manifestly ill-founded and had to be rejected” and by four votes to three, the Court found that there had been no violation of the right to a fair trial.
The Court found in particular that the applicant had intentionally stated untruths to defame Jews.
“Such statements could not attract the protection for freedom of speech offered by the Convention as they ran counter to the values of the Convention itself. There was thus no appearance of a violation of the applicant’s rights and the complaint was inadmissible.”
The European Court of Human Rights also examined a complaint by the applicant of judicial bias as one of the Court of Appeal judges who had dealt with his case was the husband of the first-instance judge.
It found no violation of his right to a fair trial because an independent Court of Appeal panel with no links to either judge had ultimately decided on the bias claim and had rejected it.
Under Articles 43 and 44 of the Convention, this Chamber judgment is not final.
During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court.
If such a request is made, a panel of five judges considers whether the case deserves further examination.
In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
